If a contract of sale is in writing and contains no warranty,
parol evidence is not admissible to add a warranty.
If a contract of sale in writing contains a warranty, parol
evidence is inadmissible to show a warranty inconsistent with
it.
An express warranty of quality in a sale excludes any implied
warranty that the articles sold were merchantable.
A warranty cannot be implied in a sale when there is an express
warranty of quality accompanied by the delivery and acceptance of a
sample as such.
The party who seeks to establish that words are used in a
contract in a different acceptation from their ordinary sense must
prove it by clear, distinct and irresistible evidence.
When parties have reduced their contract to writing without any
uncertainty as to the object or extent of the engagement, evidence
of antecedent conversations between them in regard to it is
inadmissible.
This action was commenced in the Marine Court of the City of New
York to recover $1,687.51, alleged to be due plaintiffs for a
quantity of varnish, etc., sold and delivered to defendants between
November 9, 1881, and May 15, 1882. It was duly removed into the
Circuit Court of the United
Page 134 U. S. 307
States for the Southern District of New York on the petition of
the defendants, the plaintiffs being citizens of Michigan, the
defendants, citizens of New York, and the amount sought to be
recovered, exclusive of costs, exceeding $500.
The record appears to contain substantially all the evidence. It
shows the material facts to be as follows. On the 24th of June,
1881, a contract was made between the parties in these terms:
"Brooklyn, N.Y. June 24th, 1881"
"We hereby agree to deliver to Messrs J. H. De Witt & Son at
their factory in Brooklyn, in N.Y., eighty (80) barrels of japan
and twenty (20) barrels of varnish within one year from date. These
goods to be exactly the same quality as we make for the De Witt
Wire Cloth Company of New York, and as per sample bbls.
delivered."
"Turpentine copal varnish at 65c. per gallon."
"Turpentine japan dryer at 55c. per gallon."
"Each shipment to consist of eight (8) barrels japan and two (2)
barrels varnish, to be made once a month, commencing September
next. Terms on each shipment, six months, without interest."
"BERRY BROTHERS"
"Per A. HOOPER,
Manager"
"We hereby accept the above proposition."
"J. H. DE WITT & SON"
"Brooklyn, June 24th, '81"
At the time stipulated, the defendants in error, Berry Bros.,
delivered the proper number of barrels of varnish and of dryer, but
the plaintiffs in error claim that the dryer did not conform to the
contract in quality. They not only resist the payment of a balance
due of the purchase money, but also present a cross-demand for
$17,500 for alleged breach of contract. The precise point of
controversy is as to the relative quantities of turpentine and of
benzine in the dryer. It appears that plaintiffs in error were
manufacturers of wire
Page 134 U. S. 308
gauze for screens, etc., and bought the dryer to use in their
factory, and that the plaintiffs in error knew of these facts. The
japan dryer and the copal varnish were used to mix with the paint
that was put on wire goods. The process was that the wire cloth ran
through a trough filled with the paint so mixed, and passed between
felt rollers into a drying chamber heated by steam to 140 degrees.
At the further end of such chamber, the cloth passed into the cold
air. The rolls then stood four or five days, after which they were
rolled into tight rolls, wrapped, and put into the storehouse. The
plaintiffs in error allege that the paint and varnish in this case
were adulterated by the excessive use of benzine in their
manufacture, and that for that reason the paint did not adhere to
the wire cloth, but scaled off.
Plaintiffs in error commenced using the dryer and varnish in
question about their business in August, 1881, but the goods
prepared with them did not, in the ordinary course of business,
reach the consumers until May, 1882. It was then that plaintiffs in
error first discovered the defect, the composition of the goods
being unknown to them, and only discoverable either by a chemical
analysis or by the results of use. In the fall of 1882, large
quantities of the wire cloth were returned because the paint came
off, and the balance that plaintiffs in error had on hand unsold
proved to be unsalable for the same reason, and had to be cleaned
off and repainted, there being some 3,500,000 square feet damaged
one-half cent per square foot, or $17,500.
Plaintiffs in error further claim that under the contract, the
defendants in error were obliged to furnish articles of a grade
that commercially answered to the description of "turpentine copal
varnish," and "turpentine japan dryer," and that such grades were
commercially known; that the articles so known contain either very
little or no benzine, and are made of turpentine, whereas, if made
of benzine, without turpentine, they are called in trade a "benzine
copal varnish," and a "benzine japan dryer," and if they contain
half benzine and half turpentine, they are called a "turpentine and
benzine japan dryer," or a "turpentine and copal varnish."
Page 134 U. S. 309
They claim further that the defendants in error had fraudulently
substituted inferior goods for those sold; that whereas by the
description in the bill of sale, they were to have received goods
with little or no benzine, they were furnished with goods which on
analysis were shown to have 38 parts of benzine to 6 1/3 of
turpentine, and were known to the trade as "benzine goods." The
defendants in error, on the other hand, maintain that the contract
did not call for goods known to the trade as "commercial
turpentine" goods, for two reasons: (1) by the very terms of the
contract, the quality was agreed to be tested by a different
standard, which was that the goods sold were to be "exactly the
same quality as we make for the De Witt Wire Cloth Company of New
York, and as per sample bbls. delivered," and (2) because there was
no such standard of uniform manufacture and terminology in the
trade, as to these goods, as was claimed by the plaintiffs in
error, they themselves having discovered that their process was
bad, and afterwards changed it.
It appears further from the record that in a previous contract
between the defendants in error and the De Witt Wire Cloth Company
-- not the plaintiffs in error -- a stipulation had been inserted
that the goods should be "the best of their kind, and equal to
those formerly furnished." Plaintiffs in error maintained that this
contract of quality is, by reference, a part of the contract. This
view the court rejected.
In the course of the trial there were several exceptions taken
to the introduction, or the refusal to permit the introduction, of
evidence. The plaintiffs in error also made several exceptions to
the charges as given, and to the refusals to charge as requested.
The trial resulted in a verdict and judgment for the defendants in
error for the sum of $2,177.57, being the full amount of the demand
and costs, to review which judgment this writ of error was sued
out. The plaintiffs in error claim by their assignments that the
court in the trial below committed 16 different errors.
Page 134 U. S. 311
MR. JUSTICE LAMAR, after stating the facts as above, delivered
the opinion of the Court.
It is not necessary to examine the sixteen assignments of error
in detail. When analyzed, they are resolved into one or other of
these three propositions:
(1) That under a contract for the future delivery of goods, such
as was made in this case, and by the terms of this agreement, it
was still necessary that the goods delivered should conform to a
common commercial standard, and should be adapted to the known uses
of the vendee, notwithstanding the express terms of the written
contract.
(2) that the court erred in refusing to treat the previous
contract between Berry Bros. and the De Witt Wire Cloth Company as
a part of the contract in controversy, by reference.
(3) that the court erred in excluding the antecedent parol
colloquium offered as a part of the contract, or as
competent to explain and interpret it.
We will consider these general propositions in the order
Page 134 U. S. 312
stated.
First. The contract between the parties was in writing,
and contained an express warranty as to the quality. It says:
"These goods [are] to be exactly the same quality as we make for
the De Witt Wire Cloth Company, of New York, and as per sample
bbls. delivered." Now there is good authority for the proposition
that if the contract of sale is in writing, and contains no
warranty, parol evidence is not admissible to add a warranty.
Van Ostrand v. Reed, 1 Wend. 424;
Lamb v. Crafts,
12 Met. 353,
Dean v. Mason, 4 Conn. 432;
Reed v.
Wood, 9 Vt. 285; 1 Parsons on Cont. (6th ed.) 589.
If it be true that the failure of a vendee to exact a warranty
when he takes a written contract precludes him from showing a
warranty be parol,
a multo fortiori when his written
contract contains a warranty on the identical question, and one in
its terms inconsistent with the one claimed.
In the case of
The Reeside, 2 Sumner 567, Mr. Justice
Story said:
"I apprehend that it never can be proper to resort to any usage
or custom to control or vary the positive stipulations in a written
contract, and
a fortiori not in order to contradict them.
An express contract of the parties is always admissible to
supersede or vary or control a usage or custom, for the latter may
always be waived at the will of the parties. But a written and
express contract cannot be controlled or varied or contradicted by
a usage or custom, for that would not only be to admit parol
evidence to control, vary, or contradict written contracts, but it
would be to allow mere presumptions and implications, properly
arising in the absence of any positive expressions of intention, to
control, vary, or contradict the most formal and deliberate written
declarations of the parties."
The principle is that while parol evidence is sometimes
admissible to explain such terms in the contract as are doubtful,
it is not admissible to contradict what is plain or to add new
terms. Thus, where a certain written contract was for "prime singed
bacon," evidence offered to prove that by the usage of the trade a
certain latitude of deterioration, called "average taint," was
allowed to subsist before the bacon ceased to answer that
description was
Page 134 U. S. 313
held to be inadmissible. 1 Greenleaf on Ev. � 292, note 3;
Yates v. Pym, 6 Taunt. 446;
Barnard v.
Kellogg, 10 Wall. 383;
Bliven v.
New England Screw Company, 23 How. 420,
Oelricks v.
Ford, 23 How. 49.
There are numerous well considered cases that an express
warranty of quality excludes any implied warranty that the articles
sold were merchantable, or fit for their intended use.
International Pavement Co. v Smith, 17 Mo.App. 264;
Johnson v. Latimer, 71 Ga. 470;
Cosgrove v.
Bennett, 32 Minn. 371;
Shepherd v. Gilroy, 46 Ia.
193;
McGraw v. Fletcher, 35 Mich. 104.
Nor is there any conflict between these authorities and others
like them, on the one hand, and those, on the other, which hold
that goods sold by a manufacturer, in the absence of an express
contract, are impliedly warranted as merchantable, or as suited to
the known purpose of the buyer.
Dushane v. Benedict,
120 U. S. 630,
120 U. S. 636,
and cases there cited. It is the existence of the express warranty
or its absence which determines the question. In the case at bar,
there was such an express warranty of quality in terms. Not only
that, but there was a sample delivered and accepted as such. The
law is well settled that under such circumstances, implied
warranties do not exist.
Mumford v. McPherson, 1 Johns.
414;
Sands v. Taylor, 5 Johns 395;
Beck v
Sheldon, 48 N.Y. 365;
Parkinson v. Lee, 2 East 314.
In
Jones v. Just, L.R. 3 Q.B. 197, quoted by Mr. Benjamin
in his work on Sales, § 657, Mellor, J., delivering the opinion of
the court, laid down, among others, the following rule:
"Where a known, described, and defined article is ordered of a
manufacturer, although it is stated to be required by the purchaser
for a particular purpose, still, if the known, described, and
defined thing be actually supplied, there is no warranty that it
shall answer the particular purpose intended by the buyer."
Chanter v. Hopkins, 4 M. & W. 399;
Ollivant v.
Bayley, 5 Q.B. 288.
Examining now the express terms of the contract in order to see
what they are, and whether they fairly import the warranty claimed
by the plaintiffs in error, we find them to be as follows:
Page 134 U. S. 314
"These goods to be exactly the same quality as we make for the
De Witt Wire Cloth Company, of New York, and as per sample bbls.
delivered. Turpentine copal varnish at 65 cts. per gallon.
Turpentine japan dryer at 55 cts. per gallon."
There are here three items of description
claimed by
the plaintiffs in error: (1) That they should be the same as those
made for the De Witt Wire Cloth Company, and there is no evidence
whatever that they were not the same, nor is a difference in this
respect any part of their claim. (2) That they should conform to a
sample delivered, and here again is an entire absence of testimony
to show any difference, and a want of any such claim by the
plaintiffs in error. The whole question, therefore, as to this
branch of the case turns upon the effect of the use of the
expressions: "Turpentine copal varnish at 65 cts. per gallon.
Turpentine japan dryer at 55 cts. per gallon." The plaintiffs in
error maintain that the defendants in error thereby engaged to
deliver articles known to the trade by those names, and of a
certain standard of quality. We do not so construe the writing. All
the terms descriptive of the quality are found in the sentence
preceding. These sentences are nothing but stipulations in respect
to the prices to be paid, and were not intended to fix quality.
There is this further to be said: we have carefully examined the
record in this case, and are impressed with a conviction that
whatever the fact may be, the evidence adduced fails to show any
such general usage of trade in respect to the standard of these
preparations, or in respect to their designations, as is claimed by
the plaintiffs in error. Their position is that the words
"turpentine copal varnish," etc., if considered at all as a
stipulation as to quality, would mean a varnish in which the liquid
elements were to be so composed that at least 50 percent of them
should be turpentine. In
Carter v. Crick, 4 H. & N.
417, Pollock, C.B., observed that
"if a party seeks to make out that certain words used in a
contract have a different acceptation from their ordinary sense,
either for the purposes of trade, or within a certain market, or a
particular county, he must prove it, not by calling witnesses, some
of which say it is one way and some the other, and then
Page 134 U. S. 315
leaving it to the jury to say which they believe, but by clear,
distinct, and irresistible evidence."
We pass now to the second proposition of the plaintiffs in
error, that the court erred in refusing to charge the jury that if
the goods delivered to them as turpentine were not the best of
their kind, as guaranteed by reference to the contract with the De
Witt Wire Cloth Company, they should find for them. The answer to
the proposition seems obvious. It is but an effort, in a different
shape, to vary the written contract made. The terms of that
contract were not "these goods to be exactly the same quality as we
have heretofore contracted to make for the De Witt Wire Cloth
Company, and as per sample bbls. delivered," but were, "these goods
to be exactly the same quality as we make for the De Witt Wire
Cloth Company," etc. There is here no reference whatever, either
express or implied, to the contract with the De Witt Wire Cloth
Company. What goods were in fact made, not what were agreed to be
made, was the standard. To fix that standard of goods produced, and
not goods contracted for, yet more firmly as the measure of
quality, a subsequent clause was written, "and as per sample bbls.
delivered." It is clear that under the contract, if the goods
produced for the De Witt Wire Cloth Company varied from the samples
delivered, the plaintiffs in error has the right to insist on the
test by the sample. It is manifest that the terms of the other
contract were not present to the minds of the parties to this
contract. The plaintiffs in error fixed the terms of their
warranty, and we cannot import other terms into the writing.
The third proposition, that the court erred in excluding
evidence of an antecedent conversation between the salesman and one
of the plaintiffs in error, is disposed of by the well settled rule
that
"when parties have deliberately put their engagements into
writing in such terms as import a legal obligation without any
uncertainty as to the object or extent of such engagement, it is
conclusively presumed that the whole engagement of the parties, and
the extent and manner of their undertaking, was reduced to writing,
and all oral testimony of a previous colloquium between the
parties, . . . as it would
Page 134 U. S. 316
tend in many instances to substitute a new and different
contract for the one which was really agreed upon, to the
prejudice, possibly, of one of the parties, is rejected."
1 Greenleaf Ev. § 275, and authorities cited;
White v.
National Bank, 102 U. S. 658;
Metcalf v. Williams, 104 U. S. 93;
Martin v. Cole, 104 U. S. 30.
On the whole case we find no material error, and the judgment of
the court below is affirmed.
